Law
opinion
Why
trials for oppressive dictators pose difficulty?
Barrister
Harun ur Rashid
The
trial of former dictator of Yugoslavia, Slobodan Milosevic,
at the UN Tribunal at The Hague ( Netherlands) has demonstrated
that the trial process has bogged down after three years
of hearings. Milosevic's frequent illness has also contributed
to adjournment of hearings several long periods.
Legal
experts do not know how long the trial will continue because
the defence case has just began and Milosevic wants to
call 1,000 witnesses, including the British Prime Minister
Blair, and the former US President Bill Clinton. The trial
may take at least another couple of years before the prosecution
is able to sum up the case against Milosevic.
Millions
of dollars are being spent for the trial and the countries
that have been funding trial- expenses are getting worried
that the trial may continue for years together and their
budget for the trial expenses will be blown out. Furthermore,
there is a fear that Milosevic may be acquitted because
of insufficient evidence. If this occurs, it will be a
big blow to trial for dictators for horrific crimes committed
on the people within its borders and beyond.
Main
principles applicable in criminal cases
Two main principles apply in a criminal trial in domestic
courts.
First, there is a presumption of innocence of
the accused person until it is proved beyond reasonable
doubt. The prosecution has to prove the charge and the
accused person can remain silent during the whole trial,
pleading only "not guilty".
Second,
sufficient evidence must be established linking directly
between the accused person and the crime. If there is
no sufficient evidence against the person, the prosecution
will fail because the charge has not been proved against
the accused beyond reasonable doubt.
For
example, in a trial on a charge for theft, there is likely
to be an exhaustive exanimation of events and circumstances
to establish whether the accused person was directly involved
in what occurred. The prosecution has to prove by presenting
evidence the guilt of the accused beyond reasonable doubt
Dilemma
If this domestic approach is applied in respect of war
crimes, genocide and crimes against humanity that occurred
over a period of years in different parts of a country,
it is very difficult to pin a dictator down to the crimes.
The
same problem caused the UN tribunal in Rwanda to collapse.
It was set up by the UN to try the Hutu tribesmen who
massacred 800,000 Tutsi tribe people in 1994. Although
some cases were heard, most of the accused had to be released
from prison waiting for trial and eventually a process
of reconciliation was substituted.
The
same problem is likely to occur when and if Saddam Hussein
is put on trial. It is reported that about 1,000 lawyers
including 400 Americans and Europeans are ready to defend
him.
Debate
among legal experts
There is a debate as to whether domestic criminal procedures
should apply to the trial of international crimes. Serious
considerations are being thought of as to what kind of
procedures should be applied for war crimes, genocide
and crimes against humanity.
One
group of lawyers says that if domestic procedures of "proving
beyond reasonable doubt" in criminal cases is applicable,
many dictators who are allegedly responsible for such
heinous crimes would be acquitted. They argue that the
presumption of innocence for trial for those in the category
of Saddam Hussein and Milosevic is to be abandoned.
The
other group believes that presumption of innocence should
not be abandoned because trial would degenerate into political
revenge.
New
suggested procedures for gross international crimes
It is argued that since the dictators held the highest
executive office of the land, it has to be presumed that
they had the knowledge of the crimes in question as the
"buck stops at the executive of the land".
Consequently,
the burden of proof will fall on them, not on the prosecutors,
to show that they did not know anything about the occurrence
of crimes. In that event, prosecution will not need to
prove through submission of evidence of knowledge of a
dictator through the "chains of command" principle
and letters of authority emanating from a dictator
During
the post-Second World War trial in Tokyo in 1945-46 against
Japanese military leaders, a legal principle, known as
"<>Yamashita principle<>" ( named
after accused General Yamashita) emerged. Under the principle,
an accused person could not deny the knowledge of a crime
because as commander of military operations, he ought
to have known the occurrence of crimes within his watch.
His negligence of duty could not be cited as a defence
for him.
It
may be recalled that there were no instructions in writing
from Hitler as to the genocide of Jews in the early 40s
under the Nazi regime. If he did not commit suicide, it
would have been very difficult to prove conclusively that
he was responsible for exterminating millions of Jews
in Europe. For trial of such crimes, it is usually impossible
to find "the smoking gun", that is, the direct
order from a dictator that the killing of civilians be
carried out.
Concern
for new procedures
If new procedures are in place, many legal experts assert
that trial will not be fair. They believe it would be
a political revenge, manipulating the legal system, for
the victors. Furthermore, the 1948 Universal Declaration
of Human Rights, in its Article 11, provides: " Everyone
charged with a penal offence has the right to be presumed
innocent until proved guilty according to law in a public
trial at which he has had all the guarantees necessary
for his defence."
Consequently,
the proposed new procedures will be contrary to the UN
Declaration of Human Rights that has become a part of
customary international law, according to overwhelming
number of legal experts and therefore cannot be violated
by member-states of the UN.
Conclusion
It is noted that former Chilean dictator General Augusto
Pinochet remains free, although several attempts have
been made to put him to trial. There seems to be a big
dilemma in pursuing a trial against a dictator.
On
the one hand, there is a compelling need to put a dictator
on trial for the commission of horrific crimes during
their iron- fist rule, on the other hand, the proposed
new procedures would suggest not only a complete abandonment
of the basic rights of an individual under the Universal
Declaration of Human Rights but also a failure of principles
of fair and impartial trial.
Given
the above dilemma, a new balanced new procedure may be
worked out at the session of UN International Law Commission
in consultation with The Hague-based International Criminal
Court to meet justice with fairness.
The
author is former Bangladesh Ambassador to the UN, Geneva
Photo
: BBC
